Professional Documents
Culture Documents
Custodial Death
Custodial Death
INDIA
9.1 Introduction
persons died in police lockups during the past three years. The
421
Andhra Pradesh, widespread public protest against custodial
stations forcing the police to flee away from the station leaving
422
Prisoners have human rights and prison torture is the
the law, not above it and can be held liable for the violation of
and often the practice of the rule of law, where the authorities
custody in India during the year 1985 to 1991 was 415. Figures
during the year 1990-92, as many as 258 rapes and 197 deaths
423
In police custody were reported from all over the country.
been punished with strict sanctions but the crime rate is not
raises the public interest and attracts media attention. Not that
424
at each time the death is due to violent causes but at times may
I Sukhla V. N., Constitution of India. Eastern Book Compnay, 10'" edition. (200 I). reprinted (2007) ,
Lucknow, p 827-854
425
in custody to ensure examination of the circumstances leading
unexplored. 2
Article 21, all those directive principles of State policy that are
fundamental right but is the basic human right from which all
426
other human rights stem. It is basic in the sense that the
observed, , ... sanctity of life and liberty was not something new
liberty arbitrarily without the authority of law was not the gift of
relating to the sanctity of life and liberty which existed and was
in force before the coming into force of the Constitution ... "
Singh Vs. State of u.p.3 and expanded the connotation of the term
'life' and said " ... Iife is something more than mere animal
; AIR 1963 SC 83
427
those limbs and faculties by which life is enjoyed. 4 The
soul communicates with the outer world ... " . In Maneka Gandhi
liberty of man and some of them have been raised to the status
under Article 19" and in the same case it was held that the
4 Supra note I
5(1978) 1 S(,C248
6 Ibid
428
for depriving a person of personal liberty' and there is
lawful imrpisoment."
Thus, the said case gave the opportunity for the court to
a man hand and foot, fetter his limbs with hoops of steel, shuffle
him along in the streets and stand him fot hours in the courts is
to torture him, defile his dignity, vulgarise society and fool the
human line and how far do the rules err in print and practice?"
stating that the Criminal law of Raj vintage has lost some of it's
11 Ratanlal & Dhirajlnl, The code of Crimina! Procedure. Wadhwa & company, 17th ed, reprint 2007, Nagpur, p-
836
" Shad Saleem raruqi, "Human Rights: Asian and Western Perspectives" in Criminal Justice (2004)
K.I.Vibhute (Ed) 62-81. For an analysis of various paradigms in this regard, See Archana Parashar,
"Human Rights: Imperatives of Theoretical Change", 40 .JIll (1998), no.I-4,6-38
432
when the conviction is for an offence punishable with death, the
General of India Vs. Lachman Devi case the Court opined that the
9.2.2 Torture
liberty has been held to include the right to live with human
Constitution .14
preventive measures:
l.The police personnel carrying out the arrest and handling the
register.
2.The police officer carrying out the arrest of the arrestee shall
date of arrest.
is.
at the time of his arrest and major and minor injuries, if any
police officer effecting the arrest and its copy provided to the
arrestee.
record.
conspicuous board.
not deprived of his right to life. His liberty is in the very nature of
precious. The duty of care on the part of the State is strict and
by law ... " In this case Court awarded a sum of Rs. 1.5 lakhs to
the mother as her son had died in police custody. The Court's
right to compensation.
The Latin maxims salus populi est suprema lex (the safety of
the people is the supreme law) and salus republicae est suprema
lex (safety of the State is the supreme law) co-exist and are not
only important but lie at the heart of the doctrine that the
information would neither be right nor just nor fair and therefore
Sunil Batra Vs. Delhi Administration l7, the Court was called upon to
17 Supra note 7
441
prison under its order and direction. He held "We cannot be
fact was brought to the notice of the Court that undertrials were
right to life includes the right to live with human dignity and all
that goes along with it, namely, the bare necessaries of life
diverse forms, freely moving out and mixing and coming ling
the police. In this case the Court directed the Government for
had suffered.
Evidence Act.
excluding the time necessary for the journey from the place of
9.2.6 Confession
against himself; and Section 161 (2) Cr.P .c. enjoins that any
this context, wherein the Supreme Court held that Section 161
or trial is under way, goes beyond that case and protects the
and the like - not legal penalty for violation. So, the legal perils
" Art. 21 states: No person shall be deprived of his life or personal liberty except according to procedure
established by law. The procedure established by law has to bejust, fair and reasonable. as held by Indian
Supreme eOllli. See e.g. Maneka Gandhi v. Union of India, AIR 1978 S.C.596
448
guilt, it becomes' compelled testimony', violative of Article 20(3).
the wish to have his lawyer by his side when his examination
goes on, this facility shall not be denied, without being exposed
unburden himself beyond the view of the police and tell whether
some other custody for him where the police cannot reach him.
case. 22 It was further observed that: above all, long run recipes
protect this right in Saroan Singh Vs. State of Punjab, the Court
held that" act of recording confession under Section 164 Cr. Pc.
is very solemn act and, in discharging his duties under the said
~~ Supra note I
451
Section, the Magistrate must take care to see that the
importance of Section 164 of the Cr. Pc. the court observed that:
must also be established that the confession is true and for the
164 of Cr.P.c. and the rules and guidelines framed by the High
such supposition he she rid give the accused sufficient time for
Section 164 Cr.P.c. and the rules framed by the High Court for
offence
statement.
suspect.
purposes of discovery.
9.2.8 Bail
innocence in favour of the accused person does not arise till the
but judicially, with likely concern for the cost to individual and
last four words of Article 21 are the life of that human right". In
Pradesh. In this case the Court held that there is a need for
26 (1980) I sec 91
461
considerations which deter an accused from running away from
justice and risk of financial loss is only one of them and that too
the Magistrate is not high, for a large majority of those who are
done more harm than good. The new insight into the subject of
462
pre-trial release which has been developed in socially
has his roots in the community and is not likely to abscond, the
which would deter him from fleeing, the Court should take into
(v) His prior criminal record including any record of prior release
on recognisance or on bail.
(viii) Any other factors indicating the ties of the accused to the
Guidelines
transparent.
9.Where police have the power to grant bail the power should
be exercised.
or mechanically.
-Is there a danger that the suspect will commit further offence?
9.2.9 Trial
one's choice;
such appointment;
confess guilt;
467
(12) To have a conviction reviewed by a higher court according
to law.
(14) Not to be convicted for any offence for which one has been
(15) Not to be convicted for any act which did not constitute a
court of law beyond the initial 24 hours between the first arrest
Political Rights provides for the right "to be tried without undue
" UDHR, para. 2"d Even though UN Declaration did not provide for easily discernible enforcement
mechanism, yet over the years, UN has served the calise of human rights objectives in many ways. See
V.S.Mani, "Human Rights and the United Nations: A Survey". 40 JiLl (1998) no.I-4, 38-66 at 45.
469
y trial, and made it almost a fundamental right. The landmark
the broad sweep and content of Article 21. The Supreme Court
arrest, but the writ petition stated that they could not have been
languishing in jail for over eight years for a crime which perhaps
Madhu Mehta Vs. Union of India 32, the Supreme Court reiterated
Article 21. This principle has no less importance for the disposal
" (1986)4SCC481
" (1989) 1 sec 6~
472
9.2.10 Appeal
(b) In the event of any such copy being sent to the jail
jail administration.
lawyer.
(e) The State which prosecuted the prisoner and set in motion
in substantial peril.
requirements:
where the ends of justice call for such service. With the
aforesaid guidelines the Court directed that the jail manuals will
of Article 21.
court
enjoy good health, both physical and mental, and they retain
should seek to reduce the extent of that impact and should also
concept that health care embraces not simply treatment but all
480
Guidelines for medical care in prisons
each prison:
3.Emergency treatment;
treatment of prisoners;
qualified pharmacists;
necessary;
cases of urgency;
free of charge.
possible;
For this purpose all the State Governments are directed to fix
the rate of such interim wages within six weeks (from 24th
direction.
detained the executive has to justify its action in the sense that
484
of the detainees under preventive detention. Preventive
same. The State has to control and curb the mala fide
of fundamental rights.
in a criminal case.
Constitution of India.-
490
In Nilabati Behera (Smt) alias Lalita Behera v. State of Orissa 39
in Private law for damages for the tort resulting from the
}9 Ibid
491
the fundamental right is claimed by resort to the remedy in
suit to claim damages for the tortuous act of the State as that
cannot get any relief under the public law by the Courts
492
In O.K. Basu v. State of West BengarO, it· has been held
after due examination of all the facts ordered for payment of Rs.
him and the one who obtained the orders of remand, are but
slightest doubt that the responsibility lies else where and with
493
Constitutional rights of Mr. Bhim Singh were violated with
were invaded, the mischief or malice and the invasion may not
the deceased and the women whose clothes were stripped off
labourers who were forced to work were paid Rs. 25 per day as
wages.
Delhi police Head Quarters and others, the police raided the
a house with her three children wage 13, 9 and 7 years. The
land lord of that house took the help of police to forcibly evict
them from the house. During the police raid the police trampled
"(1994)ACJ 499
496
9.3.4 Police atrocities and compensation by Apex Court.
State for vicarious liability for excesses. The turning point came
in 1978 in Maneka
Gandhi's case.' when the Supreme Court held that any State
criminal cases, for seeking bail and also for defence at the time
of trial.
of Bihar. The petitioner was kept in jail for nearly 14 years after
50 (1994) 1 SCC92
498
custodial death. Expressing their deep concern on custody
1.5 lakh by the State to the petitioner for custodial death of her
51 Supra note 39
5'
- 1995 slIpp(3)SCC 716
499
Finding little improvement. in Khedat Mazdoor Chetna
fundamental rights.
55 Supra note I
502
9.3.6 Death In police custody and compensation.
503
The High Court made a strong observation In this
Death of. In reo the Supreme Court took suo- motu notice
abscond but on this ground alone his prayer for anticipatory bail
anticipatory bail the Court cannot rule out the possibility that
reasonable time. The Court further found that neither the dead
against the petitioners and issue the non- bailable warrant. The
murky feature which the Court could see In the case. Is that
'" Justice Sujata Manohar, "Human Rights Protection: CUITent Challenges", XXII Delhi Law Review
(2000) 15-20 at 16.
507
police force for the best reasons known to them. If this Is the
learned Magistrate.
508
>- Judgment 1: Custodial death of Kewal Singh 57
The Punjab and Haryana High Court took suo motu action
custody.
injuries on his body. Jail officials claim that the Kewal was taken
from his cell to take a bath. Kewal became violent and ran
many questions. Even if his hand had got injured due to glass
of Sh. Kewal Singh specially head, back and lower part of back.
Moga and Ferozepur has not shown any justification for shifting
510
the prisoner Kewal Singh. The Superintendent, Central Jail,
Jaif'.
for the persons cannot deprive a person of his life. Nothing can
naught if this Court does not come down heavily on the State
and its officers for taking out the life of an under-trial without the
authority of law."
511
~ Judgement 2: Custodial death of Natarajan Chettiar
High Court admitted the writ appeal petition (Writ Appeal No.
12,500) In its order G.O.Ms. No. 741 Public (Law and Order-A)
to look after her sons who were aged 23, 20 and 15 years and
it was:
learned single Judge from Rs. 300, 000 to Rs. 500, 000 as has
compensation.
deceased was the only wage earner and had left behind two
children and his wife. But the two-Judge bench contended that:
40,000 (US$ 1,000) each to the petitioners. The court ruled that
delay". The Court also ordered for an investigation into the case
rank".
Magistrate:
station; that the deceased was not produced before the Court
till the end of normal working hours of the Court, i.e. 18:10
his house or call a doctor were not heeded; that the police
preparation and signing of the post mortem report; that the post
518
The High Court further observed that:
to remain silent and more often than not even pervert the truth
consequence of barbarism".
K.G. Nagar Police Station and Anr (Writ Petition NO.3 of 2007)
stated:
K.S. Venkatesh and his sister Ms Rukmini, who were taken into
the Karnataka High Court and the Court released them. The
6 January 2007 but found that they were tortured during the
name despite their good work. To arrest this bad name to the
Anr. Vs. State of Meghalaya and Drs (Civil Rule No. 130(SH)
of 1998)
Judge, Shillong, in his inquiry report stated that there had been
'foul play' on the part of the police and jail authority; that the
malaria. The Guwahati High Court did not "find any perversity in
the prosecution witness stated that at the time the victim was
him with sticks. The wife of the deceased stated that when she
saw injuries on his face, chest, legs and hands. His shirt was
prefer to remain silent and more often than not even pervert the
"It is true that Section 106 of the Indian Evidence Act cannot be
inference which can be drawn by this Court will be that all the
525
accused inmates participated in the crime. If anyone of them
proving that fact would be upon him since that is within his
employed and survived by his wife and two young children. Yet,
3,00,000 (US$ 7,500) which the Court stated "will meet the
brother and others went to the police post to enquire after his
family claiming that it was found near the railway track. The
Daimary inflicted prior to the death. The High Court vide order
2001. He was instructed to explain why the police case has not
"it is open for the State respondents to recover the said amount
form the person responsible for the custodial torture and death
of Benuddhar Oaimary".
2001) filed by the State of Tamil Nadu against the order of the
telegram from the jail authorities saying that her husband was
stating that the victim had died at the hospital. Later, she was
1996.
death was due to natural causes. The Court cited the following
facts:
Why the accused was kept in the police station for the whole
531
night when the Magistrate had not authorised police custody?
the local sub-jail refused to admit him in the sub-jail when the
kept the accused under their custody in the police station for
the whole night and in the morning took him straight away to
the referral O.P. chit itself makes it patent that the accused was
532
not able to walk and he alleged that he had been assaulted by
police. The same gives a clear picture that the accused had
on behalf of the appellants. But the following facts will make the
vomitted blood and the other informing her of the death of her
533
husband. It is obvious that Pancharaju was brought dead to the
02.11.1996 itself and that the writ petitioner was present in the
conducted only on 06. 11. 1996 after allowing the dead body to
decompose.
Court stated:
interfered with".
534
> Judgement 9: Suicide of Pandian as a result of harassment
and torture
2006)
the Division Bench against the order of the single Judge dated
released once they had located the other person. The police
continued.
have oral sex. The torture continued for about two weeks.
the police that if they would not stop he would burn himself. The
past one month he was harassed by the police, that they had
threatened him with false charges and these actions forced his
536
suicide. Pending appeal, the High Court appointed the
noted,
deceased Pandian.
(i) The Commissioner found that Or. Megajabin, the Doctor who
by setting fire in P.3 Police Station at 8.30 AM, and in the said
police station was struck off and instead, the words, "near P.3
537
The Court was "prima facie satisfied that excesses have been
Madras while partly allowing the writ appeal and writ petition
(WA No. 1130 of 2006 and WP. No. 24160 of 2006) directed
538
>- Judgement 10: Illegal detention and torture of S.
and Drs)
detention for 90 days after they were framed for the murder of a
girl named Sujatha who was actually abducted but still alive. On
the girl re-appeared and stated she did not know the
and (f) to pass such other and further reliefs as the Court may
behind the closed doors what the demands of our legal order
f>4 2007(l)JKJ557
542
subversive/militant activities. During his illegal detention he was
to which the petitioner's son was entitled for depriving him of his
detention.
complained to the then Chief Minister that the police were not
beat him up. As a result, the victim lost his right eye and was
directed the IPS officer to pay Rs 2 lakh with 9 per cent interest
three months.
Singh
crossing.
Rs 3 lakh within five months. 158. Top cop told to pay Rs 8L for
Network, Manipur.
545
,. Judgement 14: Rape of Elangbam Ongbi Ahanjaobi
army turned down the request. The victim than filed a writ
victim. "
Gurung who were illegally detained for over eight months. The
Kumar illegally and sending him to Tihar Jail. The Court also
apply his mind, which God has given him and not act blindly on
criminals and the police and also shows that the life and liberty
officials. "
High Court for a CBI probe into the death of his son in police
two cases (FIR No. 125 dated 4-12-1990 and in FIR No. 27
Munder Singh was taken out from the Central Jail, Ferozepur
whereabouts was not known. The petitioner had alleged that his
Court held that the State version on the death of Munder Singh
police, it was the duty of the police to secure his life. His
custody has been granted to the police under the orders of the
CBI probe into the death stating that CBI probe will be
could be inferred whether the version set out by the police was
has held that by virtue of the above G.O. it is clear that the state
the torture by the police. The single Judge has ordered the
65 Even though Preamble does not grant any power but it gives a direction and purpose to the
Constitution. It contains the fundamentals of the Constitution, and therefore the Supreme Court has many
a times referred to it while interpreting the Constitutional provisions. See e.g. Kesavananda [lharati v.
State of KeraJa, AIR 1973 S.C.1461, In Re Kerala Education Bill, 1957, AIR 1958 S.C.956
553
the compensation amount. The double bench consisting of
Court stated -
petitioner.
and torture for the last 13 years. The High Court also directed
including two police officials who investigated the case that led
(RI) for five years, RI for life, R.1. for one year and R.1. for five
Tallewal. Jagsir Singh was in fact alive when the FIR under
counsel for the appellants argued in the High Court that they
five years and were The judgment of the High Court of Punjab
on bail by the High Court on the basis of the law laid down in
"it is clear that false and fabricated evidence both oral and
PWl, Surjit Kaur PW8, Bikkar Singh PW9, AS! Darshan Singh
officers, also did not scrutinize the case diary and the
'The High Court also found that FIR No. 171, dated 18.12.2008
The High Court rejected FIR No. 171, dated 18.12.2008 and the
new FIR. The High Court acquitted all the appellants of all
charges.
"It is not only the private respondents, who are responsible for
falsehood presented before the trial Court that the trial Court
also believed the evidence which was brought before it. The
trial Court did not have any alternative but to convict the
appellants. "
to pay Rs. 20 lakhs each to all the appellants after taking into
asked the police to hand over the body for cremation. But the
suicide had been guarded. Justice Pal found that the police had
Commission.
In its order, the High Court while directing the state government
Pradhan ruled:
victim has lost his life and the petitioner has lost her husband
Had they acted properly as per the provision of law and bit
561
diligent in their duties, such untoward incident could not have
occurred".
the two others were kept in the Writer's room for interrogation.
with his father. However, the RDO did not record the evidence
of the two others, Ramar and Murugaiah on the plea that they
report and the final medical opinion, the ROO concluded that
564
2. Permanent incapacitation In its order, the Division Bench
found that the arrest of Marisa my was not recorded which was
The Bench while rejecting the ROO enquiry report said "On the
strength of the
Revenue Divisional
Marisamy and
officials.
the same day (around 7 am), she went to the police station to
her husband. However, she was told that her husband would be
white saree the next day (meaning she will become a widow).
Later, she was driven away from the police station. On the
that the request for compensation was justified. The High Court
observed:
"It will be out of place to mention that the citizens of this country
helpless and the long arm of Article 226 vests power on this
568
The High Court further observed:
third respondent. At the time of filing of the writ petition, she had
five minor children and she would have suffered to bring them
up in life".
order of the Gujarat High Court 19 years after her husband who
Causes Court concluded that the police had abused their power
The matter had been pending before the Court since then
570
~ Judgement 24: Compensation awarded by Orissa High
August 2008. After hearing the writ petition filed by the mother
and Justice Kumari Sanju Panda observed that the death of the
compensation.
stated that his son was was in "good health and sound
after three months from receiving the certified copy of the order.
police station against the jail officials. But the Additional Chief
"running from pillar to post for almost two years for justice, but
Court Advocate S.K. Awasthi was taken into custody and was
either by the jail authorities or by the jail mates, and (c) what
was the reason for shifting him to the hospital and keeping him
concluded that-
574
1. The cause of death of Sri S.K. Awasthi was as a result of a
disease.
Chandra Shekher but he was not sent to the Jail Hospital either
3. Neither the Deputy Jailer Sri R.S. Yadav nor the Senior
any day after 8th or 9th May, 2008 or any time within two or
three days prior to his death. The jail authorities as also Jail
Deputy Jailer Sri Shivji Singh Yadav, and other jail employees
Jail, Naini and the Jailer did not promptly refer Sri S. K. Awasthi
to S.R.N. and delayed the matter for about two days without
justification.
the Jaiier Sri Shobh Nath Yadav, Deputy Jailers Suresh Kumar
fettered in any way at the time of his production before the Joint
from the Central Jail, Naini to the Hon'ble High Court and also
from the Hon'ble High Court back to the Central Jail, Naini.
forehead, and was also not found, by the Doctors of the Hon'ble
9.5 Conclusion
67 ( 1997) I see 416, Also See In Re Death of Sa winder Singh Grover 1995 Supp(4) see 450 wherein
the deceased died in the custody of Directorate of Enforcement and the Union of India was made to pay
ex-gratia payment of Rupees 200,0001 to the widow of the deceased as an interim measure.
577
equally uSing their powers and new strategies and tools to
compass.
did not offer any firm jurisprudential basis for such a remedy. It
private law for damages for the tort resulting from the
579
India having put a reservation to Art.9 of the Covenant, stating
the last decade also given an impression that life can be put
581